R v Townshend[2021] QCA 106

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  The applicant pleaded guilty to one count on indictment of doing grievous bodily harm to a public officer with intent to prevent him from acting under lawful authority.  The maximum penalty for this offence is imprisonment for life.  He also pleaded guilty to a summary charge of unlawful use of a motor vehicle^[1] and another summary charge of driving with a drug in his blood.^[2]  Clare DCJ sentenced the applicant to imprisonment for 10 years for the offence of doing grievous bodily harm and to concurrent sentences of 15 months and three months imprisonment respectively for the summary offences.  The sentence of 10 years had the mandatory consequence that the applicant would have to serve 80 per cent of that sentence before becoming eligible for parole.
2. [2]
   The applicant seeks leave to appeal against his sentence on the ground that Clare DCJ erred in the exercise of her discretion.  The applicant does not point to any evident error of fact or law but, rather, submits that the sentence was so unreasonable or plainly unjust that it gives rise to an inference that Clare DCJ failed to exercise the discretion properly.^[3]  The applicant submits that the unreasonableness of the sentence can be inferred from its inconsistency with sentences that have been imposed in comparable cases.  The applicant submits that such a comparison demonstrates that the sentence is manifestly excessive.
3. [3]
   The facts of the offending are as follows.  Just after midnight on the morning of 3 September 2018 Senior Constable Aaron Izzard, Senior Constable Jason Butler and Senior Constable Luke Hedges were conducting a patrol in an unmarked police car on Gympie Road in Carseldine when they spotted a BMW which had stopped at a red light.  When the lights turned green the BMW drove off followed by the police officers.  The car reached a speed of 140 kph and the police officers lost sight of it.  About 5 minutes later they chanced upon the same car and followed it into a car park.  The driver of the BMW was the applicant.  Senior Constable Hedges activated his car’s emergency lights.  The applicant made a U-turn in the carpark in order to leave it.  Senior Constable Hedges drove the police car to block the BMW.
4. [4]
   Senior Constable Izzard got out and called out to the applicant, “Stop, police, stop, police”.  He was about 5 to 7 metres in front of the applicant’s car.  The applicant did not stop.  Instead, he accelerated and drove directly at Senior Constable Izzard so that the middle of the BMW’s bumper hit him.  This caused Senior Constable Izzard to be thrown onto the bonnet of the BMW.  The impact of his body cracked the car’s windscreen.  Senior Constable Izzard hung on as the applicant continued to accelerate and drive out of the carpark.  As the car was travelling at about 60 kph Senior Constable Izzard was flung onto the road.  The BMW disappeared.
5. [5]
   Senior Constable Izzard suffered dreadful injuries.  In order to appreciate the nature of the offending it is necessary to set out those injuries and their sequelae:

   1. (a)
      Laceration to the occipital region of the scalp;
   2. (b)
      Reduced level of consciousness;
   3. (c)
      Seizures;
   4. (d)
      Right side sub-dural haematoma (SDH) approximately 2 mm thickness;
   5. (e)
      Right side frontoparietal sub-arachnoid haemorrhage;
   6. (f)
      Right side temporal lobe intraparanchymal haemorrhage;
   7. (g)
      Mid-line shift of the brain to the left of approximately 3 mm;
   8. (h)
      Skull fractures through the left parietal bone, right lamboidal suture and the lateral wall of the right sphenoid sinus.  Undisplaced fracture through the lateral wall of the maxillary sinus;
   9. (i)
      Fractured eye socket;
   10. (j)
       Ruptured right ear drum;
   11. (k)
       Numerous cuts and abrasions requiring medical attention; and
   12. (l)
       Significant soft tissue injuries to both shoulders.
6. [6]
   Senior Constable Izzard was placed in an intensive care ward.  He suffered seizures and was put into an induced coma in which he remained for the next 10 days.  His family was told that he was unlikely to survive his injuries.
7. [7]
   Senior Constable Izzard came back to consciousness on 11 September in hospital sitting in a wheelchair with a catheter inserted into his body.  For some time he was unable to find out why he was in that state.  He was in pain all over his body.  He was anxious, confused and incapacitated.
8. [8]
   Senior Constable Izzard was transformed from a fit 33 year old man with a vocation and a future career into a man who could not walk, could not control his mouth so that he dribbled saliva and who had trouble speaking.  He was advised that he would be unable to walk again.  The treatment to his skull left him unable to find a way to lie in bed without hurting his head.  Apart from the major fractures to his skull, his eye-socket was also fractured and his injured ear drum hurt and bled.  His shoulder muscles had been torn and he was unable to use his arms.  He saw that his appearance in his hospital bed frightened his young children.  He lost 28 kg in weight which, for his well-trained and fit body, meant a loss of muscle tissue rather than fat.
9. [9]
   Senior Constable Izzard now has a complete loss of smell and taste.  He has hearing loss in his right ear and hyperacusis in the right ear (high pitched noises cause physical discomfort).  He suffers neck pain particularly when wearing his “full kit” (which weighs 40 kg) or after working a shift on his feet.  He has limited movement in his right shoulder and lower back pain.  He suffers from heightened fatigue.  The damage to his teeth is yet to be corrected.  He had to learn again to walk, talk and do many other ordinary things.  His broken skull was stapled back together.  He suffers from migraines and blurred vision.  Dental work has cost him $30,000.
10. [10]
    He says that “just getting out of bed is difficult, this pain requires me to start my day with the reminder of what happened to both myself and my family.  I’m in significant pain and cry in chronic pain just to get out of bed to function and merely exist for the day”.
11. [11]
    Senior Constable Izzard had ambitions to rise in the Queensland Police Force.  His past record was one of achievements that were precursors to a successful career.  That future no longer exists and his new future is an unstable one.  He is out of pocket many thousands of dollars for treatment, necessary equipment, transport, new clothing and the like.  He cannot drive and must use car hire services, trains and buses.  He gets dizzy and he is easily fatigued.  He keenly feels the pain and insecurity that his children have felt.  This adds to his own suffering.  His self-confidence has been wrecked.
12. [12]
    Senior Constable Izzard has gone back to work but his ability to work has been restricted by his injuries.  He was a member of the Public Safety Response Team and he has been reassigned to that group but the range of work that he can do has been limited.
13. [13]
    Senior Constable Izzard was not the only one whose life has been devastated by the applicant’s offending.  Senior Constable Hedges now suffers from diagnosed Post-Traumatic Stress Disorder.  He has flashbacks to the night of the offence and nightmares.  He is easily irritated and tired.  He feels stressed.  These feelings have, naturally, influenced his personal relationships and his ability to work.  He finds it hard to maintain motivation to pursue his former activities.  He naturally, although wrongly, feels a sense of guilt for his colleague’s calamity.
14. [14]
    Senior Constable Butler’s experience has also left him with diagnosed Post-Traumatic Stress Disorder.  The horrific sights that night and his fears for Senior Constable Izzard have not left him.  He has a diminished ability to work and has lost his youthful energy.  He is conscious that this has affected his wife and has strained his marriage.  He lives near the place where the offence was committed and his dread of being reminded of the events of the night has led him to avoid some places to which he used to go.  He can no longer bear going to the sports ground where his children play weekend games because it is close to the crime scene.  He said that “each day is a struggle”.
15. [15]
    The applicant was not seen again on that night but police found the BMW nearby.  It was extensively damaged by hitting Senior Constable Izzard’s body.  There was no doubt that the applicant was the driver of the BMW.  His accomplice was arrested quickly after the offence and he told police that the applicant was the driver.^[4]  The applicant had left behind in the car his mobile phone and his fingerprints.  Security video recordings and witnesses placed him in Carseldine at the material time.  When he was found and arrested, he lied.  He said that he had been driving the BMW because he was intending to buy it.  He denied any knowledge of driving into Senior Constable Izzard.  He said that he had lost his phone.
16. [16]
    The applicant’s criminal history is not significant to this case^[5].  However, he has traffic history that is relevant.  The applicant’s driving licence was suspended for speeding almost immediately after he had gained it at the age of 17.  He was soon caught driving without a licence and was disqualified from driving.  From then on, he was frequently and regularly caught driving well in excess of the speed limit, committing other driving offences and driving without licence.  His licence was suspended, or he was disqualified from holding a licence, 10 times between when he began driving and July 2019.  Two months before he committed the present offences he was convicted of driving while suspended.
17. [17]
    The applicant signed a typed letter addressed to the court and it was tendered at sentence.  In the letter he explained that in the time leading to the offence he was “spiralling out of control”.  He was “battling many internal problems”.  He said that he began to use methylamphetamine to avoid confronting these problems and he became addicted.  He said that on the night of the offence he had “not slept for a lengthy period” and was “suffering mild anxiety and paranoia” and that he “was not thinking straight”.
18. [18]
    The applicant’s solicitors obtained a psychologist’s report which was tendered at sentence.  The applicant told the psychiatrist that he was remorseful.  He said that he had been drinking alcohol on the day he committed the offence and was taking methylamphetamine “a lot” and that, as a result, he was “as high as”.  He said that he panicked when he saw the lights of the police car and thought, irrationally, that somebody was trying to rob him and that the occupants of the car were posing as police.  He said that, since his imprisonment, he could “now see the mistakes I made in my past that led me down that negative path which led me to being in that car and injuring the officer”.  He has undertaken rehabilitation courses in prison and wants to continue getting “ongoing help and treatment” upon his release.
19. [19]
    The applicant described to the psychologist a childhood in which his mother regularly used “belts, kettle cords” and “anything she could get her hands on” in order to beat him.  The applicant said that he had been sexually abused by a teenaged babysitter who anally raped him on frequent occasions.  He feared reporting this to anyone.  He has had flashbacks and nightmares ever since.  As a way of coping, he turned to alcohol and then cannabis in his early teenage years.  His mother’s death in 2017 affected him deeply and painfully.  The psychologist thought that the applicant has suffered marked depression and anxiety since childhood and that his mental health was harmed by the sexual assaults.  He was of the opinion that the applicant showed the onset of a depressive disorder and a generalized anxiety disorder.
20. [20]
    In his letter to the court, he said that he had “borrowed a car from a person who at the time I thought was a friend but I now realise is not a person I should have been hanging with” but he had told the psychologist that he had been test driving the BMW with a view to buying it.  In his letter he said: “I want it to be known that I did not intentionally hit the officer and I never lined up the officer so to speak in order to run him down.”  This point was taken up by Clare DCJ because it was inconsistent with the applicant’s plea to having done grievous bodily harm to the police officer with intent to prevent him from acting in accordance with his authority.  The applicant’s counsel took instructions from his client and informed her Honour that the applicant had not meant to deny his intention to run down Senior Constable Izzard but to convey that he had not intended to cause him grievous bodily harm.
21. [21]
    Her Honour took the view that, having regard to the contrast between the admitted facts of the case and the applicant’s false statements and false denials, his apology and late plea of guilty could not be given much weight as indications of remorse.  Her Honour found that the applicant had resorted to lies to minimise his own responsibility.
22. [22]
    Her Honour said:

“It is true that you did not fire a gun.  The car was your weapon.  At close range a car can be just as deadly as a gun.  You deliberately forced the vehicle onto flesh and bone with no risk of missing the target.  You increased the danger by accelerating.  When the officer held on, you chose to make him fall from the car by moving at speed through the darkness.  Substantial injury was almost inevitable and his death a real possibility.  All just so you might escape some difficulty.  The offence of malicious act has a maximum penalty of life imprisonment.  Yours is a bad example of the offence.  You almost killed Senior Constable Izzard.  It is a matter of luck that you did not.  If you had killed him, this would have been a very bad example of manslaughter and the sentence would have had to go higher.  The safety of police is important for the safety of the community.”

23. [23]
    Clare DCJ regarded the plea of guilty as a late plea made in the face of a prosecution case that left no real room, if any, for a trial.  Nevertheless, her Honour said that she would reduce the head sentence on that account.  Her Honour sentenced the applicant to imprisonment for 10 years, which invokes a mandatory parole eligibility date at the 80 percent point of the sentence.  Her Honour sentenced the applicant to three months imprisonment for the drug driving offence and 15 months imprisonment for the unlawful use of a motor vehicle offence and disqualified him from holding a driving licence for six months.  All sentences were concurrent and her Honour declared the time the applicant had already served.
24. [24]
    The applicant seeks leave to appeal the sentence of 10 years.  He does not point to any evident error of law or fact in her Honour’s reasoning.  On his behalf, Ms Robb submitted that, having regard to the applicant’s pleas of guilty, his lack of relevant criminal history, his good history of employment and his remorse, as evidenced by the content of his letter to the court and by his plea, the sentence of 10 years was plainly unjust when one has regard to past comparable sentences.
25. [25]
    As has been said, her Honour regarded the applicant’s expressions of remorse as insubstantial and her Honour regarded the plea of guilty as a late plea made in the face of a strong prosecution case.  Further, while it is true that the applicant’s criminal history is of no moment, his traffic history demonstrates his disposition to flout traffic laws frequently and dangerously.  The offence now under consideration can be regarded as a final escalation of that pattern of behaviour.  It implies that he represents a continuing danger to the community if he is given access to cars.  Her Honour took the traffic history into account.
26. [26]
    Ms Robb submitted, correctly, that appellate intervention on the ground of manifest excessiveness will be warranted if, taking into account all relevant factors, including the degree to which the impugned sentence differs from sentences imposed previously in comparable cases, the appellate court is driven to conclude that there must have been a misapplication of principle.^[6]  In such cases, an appellate court is bound to have regard to previous appellate sentencing decisions in comparable cases as “yardsticks” that may serve to illustrate, but not define, a possible range of available sentences.^[7]
27. [27]
    In that respect, Ms Robb referred to R v Treptow,^[8] R v Mulholland,^[9] R v Nielsen,^[10] R v Kolb,^[11] R v Saebar,^[12] R v Tapara,^[13] R v Crossman^[14] and R v Anderson.^[15]  The earliest of these, Treptow, was decided in 1995.  The latest case, Anderson, was decided in 2014.  Their essential facts can be summarised.
28. [28]
    In Treptow the offender, a 25-year-old man, was a passenger in a car being chased by police.  He repeatedly shot at them.  He and the driver fled their car on foot and each man then shot himself.  Treptow survived.  He had a previous criminal history for offensive conduct, for malicious damage and for drink driving offences.  He was sentenced to imprisonment for five years and the Court of Appeal did not interfere with that sentence on an Attorney-General’s appeal.  When giving reasons for that decision, Fitzgerald P said that “this case does not and should not be used to establish an appropriate sentencing range”.^[16]
29. [29]
    Mulholland was another police car chase case involving an offender shooting at the pursuing police officers.  The applicant was a 48-year-old man with a significant criminal history, a drug addiction and who was affected by drugs when he offended.  He was sentenced to imprisonment for 10 years.
30. [30]
    The offender in Nielsen was a 23-year-old man with a good work history and with no relevant criminal history.  While drunk, he argued with some people and then deliberately drove his car into three of them, each of whom suffered minor injuries.  He was sentenced to six years’ imprisonment.
31. [31]
    Kolb unintentionally struck a police officer with his car causing minor injuries.  He was charged with dangerous operation of a motor vehicle in respect of this act.  When another police officer tried to confiscate the car keys, he grabbed her wrist and squeezed them hard.  He was charged with serious assault.  Twelve months later, he threw petrol on two other police officers who tried to arrest him.  He was charged with two counts of doing a malicious act with intent to prevent the performance of a duty.  These offences were carried out in the context of an acrimonious divorce and were accepted as being out of character.  He was sentenced to an overall term of imprisonment of five years which was reduced on appeal to one of four and half years’ imprisonment and his parole eligibility date was also substantially reduced.
32. [32]
    In Saebar the appellant’s car was chased to a standstill by police.  Like Senior Constable Izzard in this case, a police officer got out of his car and approached the offender’s car.  The appellant then accelerated his car away, turning hard to one side.  The police officer was struck by the car and was thrown over its bonnet onto the road.  The appellant pleaded guilty to assaulting the police officer.  He was sentenced to two years’ imprisonment for this offence.  While he lay on the ground, the police officer could see the appellant in his car pointing at him.  He drew his pistol and fired into the car.  The appellant drove towards the officer but swerved aside, closely missing him.  He was found guilty by a jury of attempting to strike the police officer with intent to resist arrest.  The appellant had an extensive criminal history including for offences of violence against police.  He was sentenced to six years’ imprisonment on the count of attempting to strike with intent, which was declared a serious violent offence, and to two years’ imprisonment for other associated offences, all sentences to be served concurrently.  He sought leave to appeal the six year sentence on the ground of manifest excess.  By a majority, the court allowed the appellant’s appeal against his conviction so the application for leave to appeal was redundant.  Muir JA dissented on that issue and said that he would have reduced the sentence by removing the serious violent offence declaration.  His Honour’s reason for that conclusion was that the appellant had been sentenced for the offence involving the actual infliction of violence on the officer, the assault count.  The offence involving the attempt to strike the officer did not involve the actual use of violence.  It followed, in his Honour’s view, that the making of a serious violent offence declaration was inapposite and it implied a double punishment for the offence involving the use of actual violence.  McMurdo J said that, had he decided to dismiss the appeal, he would have agreed with Muir JA about the sentence.
33. [33]
    The appellant in Tapara was convicted of doing grievous bodily harm with intent.  After a drunken altercation with the complainant, the appellant deliberately drove his car at him.  The appellant was sentenced to imprisonment for five and a half years.  He had a serious criminal history and had served a sentence of 10 years.  He had not reoffended in the 11 years after his release.  He was in a stable relationship and had a good employment history.  It was accepted that the offending was out of keeping with the appellant’s conduct since his release years before.  Chesterman JA refused the application and observed that, in his view, the sentence was a moderate one.  Muir JA and McMeekin J agreed.
34. [34]
    Like the appellant in Tapara, the offender in Crossman was involved in a brawl and then used his car to drive at and injure his victim.  The appellant then drove his car into a man who was helping the first victim.  Both of these attacks were motivated by overt racism towards the victims who were both seriously injured, one of them very seriously.  The appellant was convicted of two counts of intentionally doing grievous bodily harm.  The appellant had no relevant criminal history and was only 17 years old when he committed the offences.  He was sentenced to 15 years imprisonment on these two counts and to lesser, concurrent, terms for associated offences.  Chesterman JA, with whom Fraser JA and Cullinane J agreed, said that, despite the “appalling nature of the appellant’s conduct” the sentence was excessive.  His Honour said that that was so having regard to the fact that the “appellant was only 17 and had some prospects of rehabilitation” and did not have a substantial criminal history.  His Honour said that the “justice of the case required … a sentence of between 10 and 13 years for the offences of intentionally causing grievous bodily harm”.
35. [35]
    The final case in the series, Anderson, was another case of an offender shooting at police during a car chase.  The appellant shot at the police car and hit it; by luck no officer was shot.  The appellant was convicted after a trial of one count of attempting to strike a police officer with a projectile with intent to prevent his lawful arrest.  He was sentenced to imprisonment for 10 years on that count and to lesser concurrent terms for the other offences.  His application for leave to appeal against that sentence was refused.
36. [36]
    Even cases that involve circumstances that are not comparable to the case at hand might be useful as yardsticks, as benchmarks, if they give a perspective that can aid the determination of a just sentence.  Neilsen, Crossman and Tapara were cases in which the relevant offence was the intentional doing of grievous bodily harm by using a car as a weapon but they were not, like this one, cases of an offence under s 317(d) and (e) of the Code involving a police officer doing his duty.  The sentences of around six years in these cases are unremarkable and demonstrate the imposition of sentences within the range for cases of that kind.
37. [37]
    Kolb was a case about a man who unintentionally, but recklessly, inflicted painful but minor injuries upon a police officer by his dangerous driving, assaulted another police officer and poured petrol over two others.  He had previous convictions for minor offences arising out of his marriage breakup.  Otherwise, he was of good character.  Police were the victims but the offence in which injuries were inflicted was one of dangerous driving and the injuries were minor.  The sentence of four and half years also reflects the fortunate absence of any serious injury to anyone.
38. [38]
    Treptow and Saebar are peculiarities.  In Treptow Fitzgerald P expressly cautioned against using the case as indicative of a sentencing range for the offence in question.  It can be put to one side.  Saebar was a case that, for present purposes, was concerned with the wrong exercise of a discretion to make a serious violent offence declaration in relation to an offence that did not involve the actual use of violence.  It is of no assistance on the question of the appropriate length of imprisonment for the offence in this case.
39. [39]
    That leaves Mulholland and Anderson.  Mulholland was persistently shooting at police during and after a dangerous car chase endangering the lives of police as well as people nearby.  Nobody was injured.  The offender was sentenced for multiple offences arising out of these events to an effective sentence of 10 years and sought leave to appeal against its severity.  de Jersey CJ, with whom Mackenzie and Chesterman JJ agreed, observed that the sentence was at the lower end of the range.  In the subsequent case of Anderson the sentencing judge had regard to that observation and to the 10 year sentence when imposing a 10 year sentence in another serious shooting case.
40. [40]
    As this analysis shows, only Mulholland and Anderson are of any assistance.  They were not cases in which an offender used a car as a weapon but they were both bad cases involving deliberate attempts by an offender to injure police with intent to evade arrest.  In neither case did the offender succeed in injuring his intended victim.  Mulholland was a guilty plea and Anderson was a conviction after a trial but in the circumstances of this case nothing turns on that.  Those cases show that a sentence over 10 years is well within the scope of the proper exercise of the sentencing discretion for an offence involving an offender who, in order to escape lawful arrest, tries to inflict injury on police.  This must be a fortiori when the offender actually inflicts grievous bodily harm upon a police officer while attempting to evade arrest.  Crossman reinforces this conclusion.
41. [41]
    It follows that the applicant’s challenge to his sentence cannot succeed.  His guilty plea had the value afforded by the avoidance of a trial and the need for the affected police officers to give evidence but the case against the applicant was overwhelming.  While the applicant’s criminal history was immaterial, his traffic history was not.  Its record of the applicant’s years of flouting of road safety gave a sense of foreboding of an offence like the present one.  That history and the circumstances of the present offence demonstrate the danger that the applicant presents and a corresponding need to protect the community and police to the degree that any reduction in an otherwise appropriate sentence for mitigating factors has to be heavily justified.  I would respectfully agree that, for the reasons given by Clare DCJ, the applicant’s expressions of remorse are not of great weight in the other circumstances of this case.  As a prediction of future good behaviour, those expressions of remorse were unreliable.^[17]  Finally, the brutality of the acts that constituted the offence and the horrendous injuries suffered by Senior Constable Izzard, as well as the lasting, perhaps permanent, damage caused to his colleagues, require a sentence that signifies with undisputable clarity the community’s denunciation.
42. [42]
    Nor do the cases relied upon by the applicant support a conclusion that the sentencing discretion miscarried.  On the contrary, the most relevant of the cases, Mulholland and Anderson, reinforce the correctness of the exercise of discretion.
43. [43]
    There is another aspect of these cases that must be addressed.  Until 2016 the Penalties and Sentences Act 1992 made provision in s 9(2) for the principles to be applied in the exercise of the sentencing discretion generally and, without displacing the applicability of that subsection, the Act made further provision in s 9(3) for the sentencing of “violent offenders”.  By Act 38 of 2016 the Penalties and Sentences Act was amended by the insertion of s 9(2A) which provides:

“However, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for any offence –

1. (a)
   that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

2. (b)
   that resulted in physical harm to another person.”

44. [44]
    Subsection 9(3) was amended so that its preamble read:

“In sentencing an offender to whom subsection (2A) applies, the court must have regard primarily to the following-”

45. [45]
    There followed the provisions of subsection (3) as they had appeared previously.  One of the effects of this amendment was to exclude the requirement that, in sentencing an offender, the court must have regard to the principle that imprisonment was a sentence of last resort^[18] and that a sentence that allowed an offender to stay in the community was preferable.^[19]  Of course, those are also common law principles of sentencing so they did not cease to be relevant.  However, the effect of the amendment is that they are no longer to be placed at the forefront of the sentencing process for an offence referred to in s 9(2A).  Instead, the principles in s 9(3) are to be given primary consideration.  They are as follows:

2. “(a)
   the risk of physical harm to any members of the community if a custodial sentence were not imposed;

2. (b)
   the need to protect any members of the community from that risk;

3. (c)
   the personal circumstances of any victim of the offence;

4. (d)
   the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

5. (e)
   the nature or extent of the violence used, or intended to be used, in the commission of the offence;

6. (f)
   any disregard by the offender for the interests of public safety;

7. (g)
   the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

8. (h)
   the antecedents, age and character of the offender;

1. (i)
   any remorse or lack of remorse of the offender;

10. (j)
    any medical, psychiatric, prison or other relevant report in relation to the offender;

10. (k)
    anything else about the safety of members of the community that the sentencing court considers relevant.”

46. [46]
    The Penalties and Sentences Act is not a statutory code so the common law principles of sentencing continue to apply.  The sentencing discretion is, to that extent, at large.^[20]  However, the legislative intention evinced by the 2016 amendment must be given effect by sentencing courts.  It is a legislative command requiring a change to the principles of sentencing that had applied until then.  The evident intent of this amendment was a shift that required prominence to be given to the objective circumstances of offending and to the ramifications of the offence for the safety of the community and particular sections of the community.
47. [47]
    Consistency in sentencing is vital and an understanding of previous cases is necessary in order to achieve such consistency.  That proposition also applies to intermediate courts of appeal in comparable cases.^[21]  However, reliance upon previous cases is appropriate only when it promotes consistency in the application of the principles of sentencing so that the law is applied equally to all offenders.  Like cases are to be treated alike.  However, when a statutory command requires a change in how the sentencing discretion is to be exercised, that change requires judges to examine previous cases carefully in order to discover whether they have been affected.  It is one of the highest functions of counsel who appear at a sentence hearing to perform an analysis of that kind, as part of the ordinary and usual preparation of the case, so that by making considered submissions, they are able to give genuine assistance to the sentencing court.
48. [48]
    All of the cases relied upon by the applicant predated the 2016 amendment and, to the extent of the change in approach in sentencing required by that amendment, those cases are inapposite.  Because I have concluded that the application must fail even when it is considered apart from the effect of the 2016 amendment, it is not necessary to consider the applicant’s case having regard to the application of the Act.  Even apart from that consideration, this sentence was not unjust.  The effect of the 2016 amendment in a case like the present must await a case in which it arises for consideration.
49. [49]
    I would refuse leave to appeal.
50. [50]
    FRASER JA:  I agree that the leave to appeal should be refused for the reasons given by Sofronoff P.
51. [51]
    McMURDO JA:  I agree with Sofronoff P.